NLRB Holds That An Employee’s Ridiculously Profane Facebook Post Is Protected, Concerted Activity Under the NLRA

On March 31, 2015, the NLRB published a decision holding that an employee’s Facebook post calling his boss a “nasty motherf***er” and making other profane comments was protected, concerted activity under the National Labor Relations Act (NLRA).

In Pier Sixty, LLC, the employee of a catering service voiced his frustrations with his supervisor on Facebook. 362 NLRB No. 59 (NLRB, Mar. 31, 2015). At the time, a union campaign was underway at the employer, and an election to certify the union was scheduled. Two days before the election, a server was upset that his supervisor spoke to employees in a loud, harsh tone. During a break, the server posted the following message to his Facebook account:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Later, the employer’s Human Resources found out about the post and terminated the employee. An unfair labor practice charge followed.

At the hearing, the administrative law judge (ALJ) determined that the workplace was rife with foul language and that comments such as “mother***er,” “a**hole,” and “eat sh**” were commonplace. The ALJ concluded that the server’s Facebook post was consistent with language that was a “daily occurrence” in the workplace and which typically did not result in any disciplinary response. Because the post related to the employee’s working conditions and the pending union campaign, the ALJ determined that the Facebook post was protected, concerted activity and that the employee’s termination violated the NLRA.

On appeal, the NLRB agreed with the ALJ. The NLRB explained that the “Facebook comments were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment on the part of Respondent’s managers . . . .” The NLRB also held that the Facebook post was not so egregious so as to lose the protections of the NLRA. The NLRB noted that the language was not qualitatively different from the obscene language normally tolerated by the employer and that no other employee had ever been discharged from similar language.

Takeaway: The Pier Sixty case is another example of how obscene language may qualify as protected, concerted activity under the NLRA – although that is not always the case. In Pier Sixty, the fact that the employer regularly tolerated similar language in the workplace was particularly harmful to the employer’s defense.

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About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on April 8, 2015, in Unions and Labor Law and tagged MCW. Bookmark the permalink. Comments Off on NLRB Holds That An Employee’s Ridiculously Profane Facebook Post Is Protected, Concerted Activity Under the NLRA.

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